D v C

[2018] NSWCA 190

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	D v C [2018] NSWCA 190
Hearing dates:	27 August 2018
Decision date:	27 August 2018
Before:	Leeming JA
Decision:	Notice of motion filed 17 August 2018 dismissed.
Catchwords:	PRACTICE – stay pending determination of application for judicial review – District Court allows appeal from Children’s Court and orders mother to have parental responsibility – alleged jurisdictional error – assessment of strength of grounds – potential for further disruption if child returned to father – proximity of hearing – stay refused
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 80 and 91 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005, r 51.44
Cases Cited:	“B” (No 2) v The Secretary, Department of Family and Community Services [2018] NSWDC 174 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 Secretary of the Treasury v Public Service Association & Professional Officers’ Association Amalgamated Union of New South Wales [2014] NSWCA 14 Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Texts Cited:	None
Category:	Procedural and other rulings
Parties:	D (a pseudonym) (Plaintiff) C (a pseudonym) (First defendant) Secretary, Department of Family and Community Services (Second defendant)
Representation:	Counsel: C Smith (Plaintiff) J Harris (Second defendant)   Solicitors: A Fawaz (Plaintiff) M Boys (First defendant) Crown Solicitor’s Office (Second defendant) K Phillips (Legal Aid Commission, Independent Legal Representative of the child)
File Number(s):	2018/246516
Publication restriction:	None
Decision under review	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2018] NSWDC 174 Date of Decision: 29 June 2018 Before: Judge Levy SC File Number(s): 2017/386548

Ex tempore Judgment

1. HIS HONOUR: Before me is a notice of motion filed on 17 August 2018 by the plaintiff in proceedings commenced in this Court’s supervisory jurisdiction alleging jurisdictional error on the part of the District Court of New South Wales in determining an appeal under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Act) from a decision of the Children’s Court.

2. The litigation concerns the young child, now aged 6, of the plaintiff father and the first defendant mother. None can be named, and I have used the same pseudonyms as have been used by the District Court. Very broadly speaking, the orders of the District Court gave sole parental responsibility for the child to the mother, subject to the Minister having parental responsibility for all issues concerning contact between the child and his father for the next five years. The position which obtained following the decision of the Children’s Court had been the reverse, with the father having sole parental responsibility for the child, subject to the Minister having responsibility concerning contact between the child and his mother. It is common ground between the parties that the motion, which sought “Orders made by Levy SC DCJ on 29 June 2018 and 19 July 2018 with respect to the child ... are stayed” would have the effect of restoring the efficacy of the orders of the Children’s Court from which an appeal had been allowed. It will not be necessary to explore the correctness of that common ground between the parties.

3. The issues between the parents of the child, both of whom were represented before me, and of the representatives of the Minister and the separately represented child, are more divisive and productive of emotional distress than many, perhaps most, in this jurisdiction. However, it is to be borne in mind that all that is to be determined by me today is the regime governing parental responsibility of the child for the period from now until the hearing and determination of the father’s summons. The summons was filed on 10 August 2018 and is listed for hearing on a final basis before the Court of Appeal on 26 October 2018, less than nine weeks from today. Although it is far from assured that the Court will be able to make orders in the matter on that date, nevertheless the period of time within which parental responsibility of the child will be determined by the orders I make is, in the scheme of things, relatively short.

4. The background history is uncontroversial, and it is helpfully summarised in the written submissions supplied by counsel for the father.

Background

5. On 16 October 2013, while the father was in custody and the child was residing solely with the mother, the child was assumed into care by the Department. From July 2016, the child was placed with his paternal grandparents. The father lived with the child and the paternal grandparents and was involved in the day to day care of the child from that date.

6. On 14 December 2017 the Children’s Court at Tweed Heads made orders allocating parental responsibility for the child to the father except that contact which, as I have mentioned, was allocated to the Minister for the next five years.

7. On 20 December 2017, the mother filed an appeal to the District Court against the decision of the Children’s Court. That appeal, which was by way of a new hearing and fresh evidence (see s 91 of the Act), was heard by the primary judge over some eight days between 28 May and 7 June 2018. His Honour produced a judgment of 631 paragraphs occupying more than 100 pages allowing the appeal and making the orders I have referred to above: “B” (No 2) v The Secretary, Department of Family and Community Services [2018] NSWDC 174. On 19 July 2018, his Honour made further orders, to substantially the same effect as those referred to above, for reasons to which I shall return when dealing with grounds 1 and 2.

Applicable principles

8. No further appeal lies from the District Court exercising its appellate jurisdiction in respect of decisions of the Children’s Court. Accordingly, the father invokes this Court’s supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW). The filing of the father’s summons does not operate as a stay of the orders made by the District Court: r 51.44(2) of Uniform Civil Procedure Rules 2005. However, pursuant to r 51.44(1), there is power to order that the decision below be stayed. Although there is no appeal pending in this Court it is accepted that r 51.44 applies and that substantially the same principles governing the exercise of discretion: see Secretary of the Treasury v Public Service Association & Professional Officers’ Association Amalgamated Union of New South Wales [2014] NSWCA 14 at [14]–[16].

9. There was no controversy as to those principles before me. It was put, and I accept, that generally the Court will not speculate upon the prospects of success of the application pursuant to s 69, although a preliminary assessment about the arguability of the case may be undertaken. It is put that there is no requirement for exceptional circumstances to ground a stay, but it is accepted that the plaintiff must demonstrate a reason or an appropriate case to warrant a favourable exercise of discretion to grant a stay.

The grounds in the father’s summons

10. The summons identifies five grounds in respect of which it is said that the primary judge fell into jurisdictional error.

Grounds 1 and 2

11. The first two grounds are related. They are that the orders made on 29 June 2018 were made in non-compliance with s 80 of the Act and secondly, that on 19 July 2018 there was jurisdictional error in making further orders, orders already having been made and entered on 29 June 2018.

12. This is a discrete matter. It was accepted at the Bar table that when orders were first made on 29 June 2018, the primary judge had before him a care plan which had been used in the Children’s Court, which dealt with the position when the father was to have sole parental responsibility for the child. Only on the second occasion, was there a care plan relating to the position with the mother having sole parental responsibility placed before the primary judge. I understood Ms Smith, who appeared for the plaintiff, to accept that at least one reason for the further orders made on 19 July 2018 was the appropriate care plan not having been before the Court on 29 June 2018.

13. Section 80 of the Act provides that:

“Requirement to consider care plan

The Children’s Court must not make a final order:

(a) for the removal of a child from the care and protection of his or her parents, or

(b) for the allocation of parental responsibility in respect of the child,

unless it has considered a care plan presented to it by the Secretary or, in the case of an application for a guardianship order, by the applicant for the order.”

The parties proceeded on the basis that the requirement was also imposed upon the District Court when hearing and determining the appeal.

14. Hence ground 1 asserts jurisdictional error on 29 June 2018 for non-compliance with s 80, while ground 2 asserts jurisdictional error because the primary judge was functus officio.

15. It is not my intention in these reasons to express concluded views on any of the grounds that are propounded in the summons. However, it is in the circumstances of the litigation appropriate to express preliminary views as to the relative strength or otherwise of those grounds. I do this in part because, as will shortly be seen, there is real difficulty having regard to the volume of material in this matter, and the nature of the unresolved diametrically opposed testimonial evidence directed to the past conduct and the welfare of the child over the next two months or so, to make findings on that material.

16. Whether or not non-compliance of s 80 gives rise to jurisdictional error is not something that I determine. If it does not, then ground 1 falls away. If non-compliance with s 80 does amount to jurisdictional error, then it would seem to say the least strongly arguable that the orders made on 29 June 2018, being orders of an inferior court, were a nullity: see Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19. In those circumstances, it seems, to say the least, difficult to say that the primary judge was functus officio when making substantially the same orders on 19 July 2018, so that large difficulties confront ground 2 in those circumstances. On the other hand, if a contravention of s 80 does not give rise to jurisdictional error, then the earlier, substantially equivalent orders made on 20 June 2018 are unaffected by jurisdictional error. What I have just said may not be the end of the analysis. However, as presently advised, those reasons, the force of which as I understood it was in substance acknowledged by Ms Smith when she was confronted with them, renders these grounds to be, at best, weak.

Grounds 3, 4 and 5

17. Grounds 3, 4 and 5 are complaints of a denial of procedural fairness (in the case of grounds 3 and 4) and of apprehended bias (in the case of ground 5). It is no little thing to allege not merely that the decision of the primary judge in the course of conducting an eight day hearing, resulting in a very substantial judgment, is incorrect, but involved a denial of procedural fairness to the losing party, or otherwise gave rise to an apprehension of bias.

18. In order to articulate the basis on which those allegations were made, reliance was placed upon the written submissions which have been filed in the white folder. In support of ground 5, it is said that:

“His Honour conducted himself in a manner that gave rise to an apprehension of bias by:

(a) interfering excessively in the running of the father’s case;

(b) undertaking extensive cross examination of the expert witness in a manner that gave the impression he wished to advance the appellant mother’s case;

(c) indicating, before any witness had been heard, that he had formed a view that the preparation of an updated Children’s Court clinician’s report would be a ‘de facto adjournment to shore up a flawed position’.”

I do not understand there to have been any other paragraph in the written submissions articulating a claim of apprehension of bias.

19. Parts of the transcript (which as a whole runs to hundreds of pages) were tendered on the application before me. It is true that there are some 16 pages of transcript which are almost entirely occupied by questioning of an expert witness by the primary judge. It is difficult for this Court to form any view as to the impression that that mode of conducting the hearing would have left, and it is even more difficult to express any view on the prospect of establishing any excessive interference in the running of the father's case. However, it is accepted that at no stage during the eight day hearing was any application made to the primary judge to disqualify himself.

20. Once again it is not necessary for me, and I do not, express a concluded view on the strength of ground 5. However, it is clear law, binding upon this Court, that the right to impugn a decision, whether of an administrative decision maker or a court, on the basis of apprehended bias, is one that must be acted upon promptly lest it be waived.

21. In Vakauta v Kelly (1989) 167 CLR 568 at 572; [1989] HCA 44 Brennan, Deane and Gaudron JJ said that:

“Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.”

The passage was, more recently, cited by Gleeson CJ, Heydon and Crennan JJ in Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [43].

22. It appears that the conduct alleged to give rise to ground 5 was conduct which was followed by one or more days of the final hearing. I understand the father to have been represented throughout the hearing. It would appear to follow that irrespective of whether or not there was a sound basis for the allegation of apprehension of bias, this ground faces a real difficulty because the point was not taken before his Honour.

23. Grounds 3 and 4 involve alleged denials of procedural fairness identified as follows:

"refusing an adjournment to allow the applicant to meet evidence introduced during the course of the issue and to allow an updated expert report to be prepared … [and] … by making procedural decisions which took the applicant by surprise and denied the applicant an opportunity to properly prepare and run his case".

24. In developing those grounds, I was taken to extracts of the transcript, on 30 and 31 May 2018 and again on 4 June 2018. The events of 28 and 29 May 2018 reflected a change of view on the part of his Honour as to the way in which, so it appears, the parties had understood the hearing would proceed. I regarded the high point of this aspect of the summons as being the refusal of the application by the solicitor then appearing on behalf of the father for an adjournment following the conclusion of the evidence of Mr Horton (a clinician) earlier that day. There is no suggestion that the way in which the solicitor's application for an adjournment was heard and determined itself denied procedural fairness. To the contrary, I understand that it was the outcome of that application which was said to amount to a denial of procedural fairness.

25. There is no doubt from the very limited primary material to which I have been taken that the primary judge undertook what might be described as a relatively activist role in the hearing. Whether or not the matters to which I have referred made the hearing procedurally unfair is something which may be doubted. Further, it was not suggested to me that at any stage the father made an application on the basis that something procedurally unfair was happening during the trial. All of that said, the way in which this eight day hearing unfolded, and in particular the way in which the evidence including the expert evidence appears to have shifted, is not something that for the purposes of the present application I am in a position to assess with any confidence let alone certainty. I do no more than express the preliminary present view that, no differently from ground 5, these two grounds appear to be, at best, relatively weak.

Other discretionary considerations

26. The parties have supplied evidence on matters directed to the welfare of the child which may fairly be described as voluminous. There are affidavits occupying hundreds of pages, the detail of which serves no purpose to summarise, in part because there are clear conflicting allegations of serious misconduct made by the mother against the father and denied by him, and vice versa. Those allegations are made in a context which were summarised by the primary judge in his Honour’s “Introduction and Summary of Conclusions” ([7]–[37]) include, as the first and perhaps primary matter, the following:

“The deficiencies [in the materials in the Children’s Court] comprised, first, the absence of full details of the record of serious criminal convictions of the father “D”, secondly, the absence of a psychological testing and assessment report that had previously been commissioned by FaCS, which revealed the father “D” to be affected by significant cognitive impairments, and thirdly, the absence of a copy of a highly relevant clinical communication letter from a consultant psychiatrist, which recorded details of alleged perpetration of historical child sexual abuse involving relevant family members of the father “D”.

That letter from the psychiatrist related to the father’s sister “E”. Four years before the events in question in this case, in a therapeutic setting, the father’s sister “E” had revealed to a consultant psychiatrist, a history of having endured childhood sexual abuse, allegedly inflicted upon her by her stepfather, the paternal step-grandfather “F” in this case.”

27. There is no avoiding the fact that the child in this case has already had an interrupted childhood, in the sense that there has been a series of shifts in those having parental responsibility for him. The final outcome of the summons filed in this Court to be heard in late October, may well resolve that question on a final basis.

28. The representatives at the Bar table were evenly divided as to the outcome of the motion. The Secretary of the Department of Family and Community Services favoured a stay of the orders as sought by the father. The independently represented solicitor appearing for the child favoured the dismissal of the motion, in alignment with what was sought by the mother.

29. However, it was common ground that on any view the disruption involved in shifting the child's home between mother and father was itself likely to have adverse consequences for the welfare of the child. True it is that it may be possible to address those consequences, as Ms Smith maintained, but other things being equal, shifting parental responsibility from one parent to the other during the course of litigation is something to be avoided. The independent representative for the child emphasised that the consequence of acceding to the motion was the risk that the child, who has for the last approximately six weeks been living with his mother, would return to his father, but at the risk of a further return to his mother in the event that the summons was unsuccessful.

27. True it is that if the summons is successful, the result will be that the child will resume living with his father, subject to limited access by his mother. However, in the scheme of things, there may well be in the relatively near future a final determination of whether the mother or the father is to have sole parental responsibility for the child, and it is to be hoped – although there can of course be no guarantee about it – that that will occur by the end of this year relatively shortly after the hearing at the end of October.

28. Bearing in mind what I have said above as to what I regard as a preliminary basis as the relative weakness of the grounds in the summons, coupled with the inevitable disruption that would be caused by acceding at this stage to the father's application, I have concluded that this is a case where the father has not discharged the onus upon him for there to be an order staying the operation of the final orders of the District Court.

29. There is one further point which should be made. Orders 2 and 3 made by the primary judge on 19 July 2018 are as follows:

“2. Pursuant to s 90(7)(b) of the Care Act, the mother “C” is to have sole parental responsibility for the child “B” until the child “B” reaches the age of 18 years, save as to the terms of order (3) which follows.

3. Pursuant to s 90(7)(b) of the Care Act, The Minister, Department of Family and Community Services, is to have parental responsibility for the child “B” for all issues concerning contact between the child “B” and his father “D”, for the next 5 years from today’s date, after which all parental responsibility for the child “B” until he reaches the age of 18 years, will revert to the mother “C”.”

33. Documents to which I was taken suggest that the mother regarded it as open for her to determine the conditions subject to which access by the father would be granted. I can understand her concerns, but that is not how the orders work. More concerningly, Mr Boys maintained that it was open to the mother to deny unsupervised access if she thought that was in the best interest of the child, even if that were not what the Minister directed. That is just not so. The sole parental responsibility granted by order 2 is subject to order 3. The mother is bound by those orders (subject to the possibility of the father’s success on his summons). It would be quite wrong for the mother to be advised to the contrary.

34. For those reasons I dismiss the notice of motion filed 17 August 2018. It was common ground that there should be no order as to costs.

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Amendments

29 August 2018 - Category changed from "principal judgment" to "procedural and other rulings"

29 August 2018 - [24] - "Mr Horton's evidence" changed to "the evidence of Mr Horton (a clinician)"

Decision last updated: 29 August 2018